Hector Perez Acosta v. Idaymi Martinez-Borges

Third District Court of Appeal
State of Florida
Opinion filed October 14, 2026.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D25-0582
Lower Tribunal No. 19-5422-FC-04
________________
Hector Perez Acosta,
Appellant,
vs.
Idaymi Martinez-Borges,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Ivonne
Cuesta, Judge.
Hector Perez Acosta, in proper person.
Idaymi Martinez-Borges, in proper person.
Before LINDSEY, MILLER, and GOODEN, JJ.
MILLER, J.

2
ON MOTION TO DISMISS APPEAL
This is a high-conflict child custody dispute that traces its origins to
post-decretal dissolution proceedings. Appellant, Hector Perez Acosta, the
father, filed an appeal, challenging a final order granting a petition for
modification of timesharing filed by appellee, Idaymi Martinez Borges, the
mother. The mother now moves to dismiss under the common law fugitive
disentitlement doctrine, contending that the father has forfeited his right to
seek appellate relief because he has absconded with their minor child and
their whereabouts remain unknown. In agreement with the mother, we
dismiss the appeal.
I
The parties have a ten-year-old son in common. Though they divorced
in 2021, numerous issues have arisen relating to the child’s educational and
medical needs. The parties were unable to agree on the best strategy for
addressing those needs.
On March 7, 2025, after conducting a multi-day evidentiary hearing,
the lower tribunal entered a thirteen-page factually intensive order granting
the mother sole parental responsibility and curtailing the father’s timesharing.
The father timely appealed.

3
The father subsequently requested permission to travel to the
Dominican Republic with the child and his boyfriend of over twenty years for
a week in July 2026. The trial court approved the request. The father failed
to return with the child, as required. He instead informed the mother through
a court-ordered communication platform that he would not be returning the
child.
On July 27, 2026, the trial court entered a “pick-up order,” directing law
enforcement to return the child to the mother’s custody on an emergency
basis. Two days later, the court convened a duly noticed evidentiary hearing.
The father was noticed through the same court-ordered communication
platform he used to inform the mother he was not returning the child.
The father did not appear at the hearing, but his boyfriend did. His
boyfriend testified that he traveled to the Dominican Republic with the father
and the child, and they visited with the father’s family members over a period
spanning several days. The day before the three were scheduled to return
to the United States, the father claimed an emergency had arisen and
departed the Dominican Republic with the child on an unknown airline,
traveling to an unknown location.
After finding that the concealment presented an imminent threat of
physical or psychological harm to the child, the trial court suspended the

4
father’s timesharing and issued an arrest warrant. To date, the warrant
remains unserved as neither the father’s nor the child’s whereabouts have
been ascertained.
II
A
The fugitive disentitlement doctrine finds its genesis in the courts’
inherent authority to refuse to hear claims brought by individuals who are
fugitives from justice. See Ortega-Rodriguez v. United States, 507 U.S. 234,
239 (1993); Tejada v. In re Forfeiture of The Following Described Prop.,
$406,626.11 In U.S. Currency, 820 So. 2d 385, 388 (Fla. 3d DCA 2002) (“It
is a doctrine that springs out of the inherent power of courts to enforce their
judgments and protect their dignity.” (citing Martha B. Stolley, Sword or
Shield: Due Process and the Fugitive Disentitlement Doctrine, 87 J.Crim. L.
& Criminology 751, 778–79 (1997))). The doctrine was established at
common law and first applied by the United States Supreme Court in Smith
v. United States, 94 U.S. 97 (1876) to reject the petition of an at-large
criminal defendant.1 See United States v. $6,976,934.65, Plus Int. Deposited
into Royal Bank of Scotland Int’l, Acct. No. 2029-56141070, Held in Name of
1 The Florida Legislature codified the doctrine as applied to forfeitures in
section 896.106, Florida Statutes (2026). See also 28 U.S.C. § 2466 (federal
fugitive disentitlement statute).

5
Soulbury Ltd., 554 F.3d 123, 127 (D.C. Cir. 2009) (“Fugitive disentitlement
first developed as a way for courts to dismiss appeals in criminal cases by
defendants who had escaped custody after filing the appeal and were
evading the jurisdiction of the court. Dismissal was an exercise of the court's
inherent power ‘to refuse to hear a criminal case in error, unless the
convicted party . . . is where he can be made to respond to any judgment
[the court] may render.’” (quoting Smith, 94 U.S. at 97)); see also § 2.01,
Fla. Stat. (2026) (“The common and statute laws of England which are of a
general and not a local nature, with the exception hereinafter mentioned,
down to the 4th day of July, 1776, are declared to be of force in this state;
provided, the said statutes and common law be not inconsistent with the
Constitution and laws of the United States and the acts of the Legislature of
this state.”); § 775.01, Fla. Stat. (2026) (“The common law of England in
relation to crimes, except so far as the same relates to the modes and
degrees of punishment, shall be of full force in this state where there is no
existing provision by statute on the subject.”). The Smith Court reasoned
that the fugitive was “not likely to appear to submit to his sentence” and,
under the circumstances, it was not inclined “to hear and decide what may
prove to be only a moot case.” Smith, 94 U.S. at 97.

6
While its genesis is in criminal law, the doctrine has not been strictly
limited. It has been applied in a variety of contexts, including custody
disputes. See Ener v. Martin, 987 F.3d 1328, 1332 (11th Cir. 2021) (“We
have held that the doctrine applies in both civil and criminal proceedings, and
in district courts as well as on appeal.” (internal citation omitted)); see, e.g.,
United States v. Barnette, 129 F.3d 1179, 1183 (11th Cir. 1997) (applying
the doctrine to an appeal involving civil contempt and enforcement of a
forfeiture judgment: “Expanding this definition [fugitive] as it applies to the
fugitive disentitlement doctrine, it has been held that ‘a fugitive from justice
need not be a fugitive in a criminal matter.’”) (citation omitted); Guerin v.
Guerin, 993 P.2d 1256, 1257 (Nev. 2000) (applying the doctrine to an appeal
of a divorce decree); Garcia-Flores v. Gonzalez, 477 F.3d 439, 442 (6th Cir.
2007) (applying the doctrine to immigration proceedings).
Since Smith, the Supreme Court has refined the contours of the
doctrine in two landmark decisions. In the first, Ortega-Rodriguez v. United
States, 507 U.S. 234, 244 (1993), the Court held that there must be “some
connection between a defendant’s fugitive status and his appeal” to warrant
dismissal while the defendant is a fugitive. 507 U.S. at 246, 249 (“We cannot
accept an expansion of this reasoning that would allow an appellate court to
sanction by dismissal any conduct that exhibited disrespect for any aspect

7
of the judicial system, even where such conduct has no connection to the
course of appellate proceedings.”). In the second, Degen v. United States,
517 U.S. 820 (1996), the Court considered whether “the doctrine should be
extended to allow a court in a civil forfeiture suit to enter judgment against a
claimant because he is a fugitive from, or otherwise is resisting, a related
criminal prosecution.” Id. at 823. As the Court reasoned, it could not
because there was “no necessity to justify” the “harsh sanction of absolute
disentitlement” where there were “alternative means of protecting the
Government’s interests.” Id. at 827–29. To unnecessarily expand the
doctrine could erode citizens’ respect for the courts by “foreclosing
consideration of claims on the merits.” Id. at 828.
The objectives of the doctrine have continued to evolve as unique
factual scenarios arise. But consistent with Ortega-Rodriguez, established
rationales for application include, “1) assuring the enforceability of any
decision that may be rendered against the fugitive; 2) imposing a penalty for
flouting the judicial process; 3) discouraging flights from justice and
promoting the efficient operation of the courts; and 4) avoiding prejudice to
the other side caused by the defendant's escape.” United States v.
Bardakova, 145 F.4th 231, 240 (2d Cir. 2025) (quoting United States v.
Bescond, 24 F.4th 759, 773–74 (2d Cir. 2021)).

8
Some courts have used a three-prong test to determine whether
dismissal is proper. They have applied the doctrine “if the party against
whom it is invoked is a fugitive, [the] fugitive status has a sufficient
connection to the present action, and dismissal is ‘necessary to effectuate
the concerns underlying’ the doctrine.” Ener, 987 F.3d at 1332 (quoting
Magluta v. Samples, 162 F.3d 662, 664 (11th Cir. 1998) (“[T]he dismissal of
a civil action on fugitive disentitlement grounds requires that (1) the plaintiff
is a fugitive; (2) his fugitive status has a connection to his civil action; and (3)
the sanction employed by the district court, dismissal, is necessary to
effectuate the concerns underlying the fugitive disentitlement doctrine.”)).
Custody cases involve unique considerations. Any such dispute
implicates the fundamental right to parent one’s child, and the polestar is
always the “best interests” of the child. See Santosky v. Kramer, 455 U.S.
745, 753 (1982) (“The fundamental liberty interest of natural parents in the
care, custody, and management of their child does not evaporate simply
because they have not been model parents or have lost temporary custody
of their child to the State.”); Logreira v. Logreira, 373 So. 3d 923, 926 (Fla.
3d DCA 2022) (“The best interests of the child is the polestar consideration
in timesharing decisions.”). Consistent with these principles, family courts

9
have applied the doctrine sparingly and only when there is a strong nexus
between the fugitive status and the challenged court order.
But it is long established that interference with lawful custodial orders
may result in forfeiture. Courts have “impose[d] the doctrine in . . . case[s] in
which the fugitive parent has removed or hidden the child, thereby making
enforcement improbable in the event of a decision unfavorable to the fugitive
parent.” Matsumoto v. Matsumoto, 792 A.2d 1222, 1236 (N.J. 2002);
compare Ener, 987 F.3d at 1332–33 (finding mother who fled Miami-Dade
with the parties’ minor children qualified as a fugitive and application of the
fugitive disentitlement doctrine was warranted), and Pesin v. Rodriguez, 244
F.3d 1250, 1253 (11th Cir. 2001) (applying the doctrine to a mother who fled
a court’s jurisdiction with her children violating numerous court orders:
“Although the ‘classic case’ in which the doctrine has been applied involves
the direct appeal of a criminal defendant, the doctrine has also been applied
where the fugitive was not a criminal defendant, but instead was a civil litigant
who continued to ignore court orders and evade arrest”), with Morrison v.
Morrison, 704 S.E.2d 617, 621 (Va. Ct. App. 2011) (declining to apply
doctrine to dismiss mother’s appeal where the mother’s status as a fugitive
and her appeal in a separate probate matter was “tenuous” and the
objectives of the doctrine would not be served).

10
B
Here, rather than avail himself of the full process afforded by our
judicial system, the father effectively engaged in “self-help,” fleeing to an
unknown venue with the child. To date, the location of the two cannot be
ascertained. Indeed, the father purportedly even refuses to disclose his
location to his boyfriend. These facts yield the indisputable conclusion that
the father’s fugitive status is connected to the order on appeal.
If we address the merits, there are two possible appellate outcomes—
an affirmance or a reversal. Enforcement of an unfavorable appellate
decision against the father will be “improbable.” Matsumoto, 792 A.2d at
1236. Even a favorable result, imputing error to the reduction in timesharing
or termination of shared parental responsibility, will be unenforceable. Like
the Court in Smith, we are not inclined to engage in a mere academic
exercise, “hear[ing] and decid[ing] what may prove to be only a moot case.”
94 U.S. at 97. Moreover, under this scenario, dismissal “serves the
doctrine’s equitable purposes.” Ener, 987 F.3d at 1332. The father has
flaunted the very court order he seeks us to expend judicial resources to
review. See Pesin, 244 F.3d at 1253 (“It would be inequitable to allow [the
father] to use the resources of the courts only if the outcome is a benefit to
[him].”). Accordingly, we decline to “permit [the father] to reap the benefits

11
of a judicial system” under these circumstances. Id.; see also Searle v. Juv.
Ct. for Williamson Cnty., 188 S.W.3d 547, 550 (Tenn. 2006) (“The fugitive
disentitlement doctrine bars an individual from calling upon the resources of
the court while at the same time ‘thumbing his nose’ at its orders. Because
individuals who have fled or escaped have displayed defiance for the judicial
system, appellate courts have been reluctant to hear their appeals.”). The
mother’s Motion to Dismiss the Appeal is granted.
Appeal dismissed.